How to File a Will for Probate in Georgia

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Michael Lewis Van Cise

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Probate Attorney - Atlanta, GA

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Posted almost 6 years ago. Applies to Georgia, 22 helpful votes

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1

Locate all copies of testamentary documents executed by the decedent

First, locate all copies of wills executed by the decedent. You will only file for probate the one you believe to be the decedent's last will and testament (along with any codicils thereto). However, Georgia law requires that anyone in possession of an original will file the will in the probate court of the county in which the decedent died. See O.C.G.A. ? 53-5-5 (1997). Thus, even though any superseded wills may not be filed for probate, they should be filed with the court. If the will distributes property to a trust or other instrument, you should also try to find that instrument, although that receiving trust or other instrument should not be filed with the court.

2

Review testator's signature and witnesses on last will.

After you have located all of the decedent's testamentary documents (wills, codicils, and revocable trusts), locate the decedent's signature and the witnesses signatures. In order to be valid under Georgia law, the will must be signed by the testator or at the testator's direction. See O.C.G.A. ? 53-4-20 (1997). The two witnesses must sign in the presence of the testator and each witness must sign his or her own name to the will. O.C.G.A. ?53-4-20(b).

3

Locate and Review Self-Proving Affidavit of last will

Try to locate the self-proving affidavit. If the will contains a self-proving affidavit, the self-proving affidavit will often be attached after the last page of the will. In order for a will to be "self-proved" in Georgia, it must contain a certificate in the form supplied by the Georgia Code. See O.C.G.A. 53-4-24. If you see a notary seal or stamp on the will, it is possible that the will is self-proved. The notary should not be the same person as the testator or either of the witnesses. If the will is self-proved, you do not need to locate the witnesses to submit the petition for probate. If the will is contested, however, you will need to identify the witnesses so that the witnesses can testify to the facts and circumstances of the execution of the will.

4

Contact Witnesses if Will is not Self-Proved or if a Will Contest is Anticipated.

If the will is not self-proved, you should contact both witnesses (or all witnesses if there are more than two). Once you have found the witnesses, you should ask the witnesses to complete Georgia probate court standard form number 6 ("GPCSF 6"): an interrogatory for the witness of a will. If the witnesses have died or cannot be located, you can get someone familiar with the decedent's signature to attest, by way of an affidavit, to the fact that the signature on the will is the decedent's signature. GPCSF 6 may be obtained at www.gaprobate.org or from the probate court. The probate court may provide you with a form affidavit, or you may need to create one which is acceptable to the court. If someone contests the will, however, the witnesses will likely be called to testify in court.

5

Determine Named Executor

After you have located the last will and testament of the decedent and determined that it is valid under Georgia law (see Step 2), look through the will to determine whether the testator named an executor. If an executor is named, locate him or her. The executor is the person who should submit the petition for probate to the court. If you are not the named executor, you can notify the executor of the fact that he or she has been named and, if that person is willing to accept the responsibility, your work is done. If you are the executor and you wish to serve, you'll need to ascertain the decedent's heirs and determine which petition to file. (see steps 6 and 9)

6

Ascertain the Decedent's Heirs

Under Georgia law, certain persons are entitled to notice of a petition for probate. Those persons are the decedent's heirs. The decedent's heirs are the persons who would have received property from the decedent's estate if the decedent died intestate (i.e. without a will). Georgia law specifies who a decedent's heirs are in title 53, chapter 2, article 1 of the Georgia code. See O.C.G.A. ?53-2-1 et seq. (1997; 2008 Supp.). The Georgia probate courts have prepared an "heirs determination worksheet." This worksheet may be downloaded at http://www.gaprobate.org/proceedings.php (link found in the bottom right hand corner of that page) or obtained from a probate court. Some probate courts may even require that this worksheet be completed and submitted with the probate petition.

7

Locate the Decedent's Heirs

Once you have determined who the heirs of the decedent are, you should gather their mailing addresses and contact information of each heir. Each heir is entitled to notice of the petition, and administration can be eased if each heir consents to the petition before you file it with the court.

8

Consider Hiring an Attorney

Consider hiring an attorney to assist you with filing the probate petition and administering the estate. Although the probate process in Georgia does not require a lawyer and can be done on your own, sound counsel may allow you to administer the estate more efficiently and may allow you to save money on taxes, reduce creditor exposure, or protect your own interests since you will be serving as executor and bear a fiduciary responsiblity for serving in that capacity. Having the counsel of an attorney experienced in the areas of probate and estate administration may also save you time and trouble because of the attorney's familiarity with the procedures and norms of the courts.

9

Determine which Georgia Probate Standard Form is proper; Be Aware of Year's Support Claims

Georgia probate courts require that persons petitioning for probate use the Georgia Probate Court Standard Forms (hereinafter "GPCSF") or forms substantially similar to the GPCSF. If the decedent had a will, the petitioner has three choices: (i) petition to probate will in solemn form, (ii) petition to probate will in common form, (iii) Petition to probate will in solemn form & for Letters of Administration with Will Annexed. Even if the decedent has a will, if the decedent was married at the time of death or had minor children at the time of death, filing a year's support petition could eliminate the need to file another probate petition to probate the will. There can be advantages to filing a year's support petition. Please consult an attorney regarding whether a year's support petition may be preferable over, or should be filed in addition to, one of the above-listed petitions.

10

File the Petition; Pay Appropriate Filing Fees

The Georgia statutes set forth the fees courts charge for certain petitions. However, fees still vary by jurisdiction because some courts charge copy fees, research fees, and other miscellaneous fees that are not easily ascertained from the statute. Most courts also charge a per-page filing fee. If you are filing a petition it is sometimes best to contact the court regarding the fee before filing, or file the petition in person. You may file the petition by mail or in person. If you file in person and you are the executor, the court may permit you to take the executor's oath at the time you file the petition. If filing by mail, you should make photocopies of the original documents and may wish to use a commercial carrier with delivery confirmation or use certified mail.

11

Take Executor's Oath/Administrator's Oath; Contact the Court Regarding Executor's Oath/Administrator's Oath

After the court approves the petition and consents to the appointment of the Executor, the court will notify the Executor of the opportunity to take the Executor's Oath. Before the court will issue letters testamentary, the Executor must take the Executor's Oath. If the court does not contact you regarding your appointment in a reasonable time, contact the court to ask about the status of your petition. When contacting the court, it is best to use the unique "estate number" identifier issued by the probate court.

12

Obtain Letters Testamentary and Begin Administering Estate.

Once the court reviews the probate petition and grants the petition, (and after the Executor/Administrator) takes the oath) the court will issue Letters Testamentary. Letters testamentary serve as evidence of the executor/administrator's authority to act. Once the probate court has issued letters testamentary, your involvement with the court will be very limited absent any challenges from creditors or beneficiaries to your administration. Please note, however, that if inventory and returns are required, the inventory is due within 90 days of the executor's appointment and returns are due one year from appointment and each anniversary of your appointment until you close the estate.

13

File Notice to Debtors & Creditors in County Legal Organ

The first step for the Executor/administrator to begin administering the estate is to file the notice to debtors and creditors. This notice should be published in the county legal organ. This notification is not the only notification required of the executor/administrator, but is required by Georgia law. Some parties, such as creditors, the Social Security Administration, and the Internal Revenue Service should also be given notice of the decedent's death and your appointment as executor. If the decedent received medicaid, you are also required to notify the department of community health of the decedent's death.

Additional Resources

Print Resources: Radford, Mary, Wills and Administration in Georgia, 7th ed. (2008); Propst, Floyd E., Handbook for Probate Judges of Georgia

Georgia Probate Courts' Website

State Bar of Georgia

Scroggin & Co., P.C. website

American Bar Association Website; FAQ "Probate"

Official Code of Georgia Annotated

Georgia Probate Court Heirs Determination Worksheet

What to do when a loved one dies. By Judge Self

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